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The  Judicial  Censorship  of  Legislation. 


90 


47  AMERICAN  LAW  REVIEW. 


THE  JUDICIAL  CENSORSHIP  OF  LEGISLATION. 

Dissatisfaction  with  recent  decisions  against  the  consti¬ 
tutionality  of  certain  laws  designed  to  improve  social  con¬ 
ditions  has  been  widespread  and  outspoken.  Critics  have 
imputed  to  courts  a  Bourbonism  which  almost  denies  the 
community’s  right  to  make  social  change  if  the  necessary 
legislation  imposes  even  theoretical  hardship  on  individ¬ 
uals.  The  dissatisfaction  is  intensified  by  a  feeling  that 
questions  of  legislative  competency  should  be  determined 
by  the  legislature  or  by  the  people  and  do  not  properly  con¬ 
cern  a  court.  Much  that  lias  been  said  betrays  conceptions 
so  divergent  that  it  seems  worth  while  to  go  back  of  the 
disputed  decisions  and  consider  something  of  the  principles 
of  constitutional  limitations  in  general,  the  theory  and  ef¬ 
fect  of  the  method  by  which  we  enforce  them  now,  and  the 
results  which  proposed  changes  of  method  would  be  likely 
to  produce. 

It  is  nothing  new  to  challenge  the  censorship  which 
jud  ges  exercise  over  statutes  to  refuse  them  enforcement  if 
contrary  to  the  constitution.  “No  veto  power,  ancient  or 
modern,”  wrote  Jefferson,  “ever  existed  so  formidable  as 
this  American,  irresponsible  judicial  veto,  a  power  to  dis¬ 
miss  laws  as  the  President  may  dismiss  officers  under  him. 9  9 
Mr.  Roosevelt  today  more  aptly  stigmatizes  the  practice  as 
“judicial  nullification”;  and  others  have  denounced  it  as  a 
usurpation  of  legislative  prerogative,  an  unwarranted  as¬ 
sumption  of  superiority  over  a  co-ordinate  department  of 
government,  and  the  exercise  of  an  anomalous  and  mis¬ 
chievous  function  not  permitted  to  courts  anywhere  else  in 
the  world. 

These  criticisms  are  generally  rested  on  the  assumption 
that  the  right  of  judicial  censorship  depends  on  a  question 
between  legislature  and  court  as  to  which  ought  to  be  the 
final  interpreter  of  the  constitution  with  authority  to  im¬ 
pose  its  opinion  on  the  other.  If  this  were  all,  it  would  be 


25  M5 


THI$  JUDICIAL  CENSORSHIP  OF  LEGISLATION. 


91 


hard  to  sustain  the  right  of  a  judge  to  intervene  as  a  self 
assumed  depositary  of  legal  wisdom,  to  explain  to  the  legis¬ 
lature  what  the  people  meant  by  language  they  addressed 
to  the  legislature  telling  it  how  to  act.  But  the  duty  of 
the  courts  really  depends  on  a  different  question,  which 
arises  not  between  legislature  and  court  but  between  legis¬ 
lature  and  people,  and  concerns  the  extent  to  which  the 
legislature  may  control  the  people’s  conduct.  The  citizens 
who  are  elected  to  the  legislature  have  no  right  of  rule  ex¬ 
cept  what  their  fellow  citizens  have  given  them. 

When  delegates  to  a  nominating  convention  are  in¬ 
structed  to  vote  for  one  candidate  or  for  another,  the  in¬ 
structions  are  intended  to  impose  a  moral  obligation,  but 
the  delegates  may  disregard  them  without  affecting  the 
validity  of  their  votes.  It  is  different  when  a  private  agent 
receives  instructions  from  his  principal  as  to  the  kind  of 
business  in  which  the  agent  may  engage.  The  instructions 
set  a  limit,  not  merely  to  the  agent ’s  duty,  but  to  his  power 
as  well.  Let  him  go  a  step  beyond  their  scope,  and  though 
his  acts  purport  to  be  in  his  employer’s  interest  and  be¬ 
half,  they  are  void  of  effect.  How  is  it  with  the  clauses  of 
state  and  federal  constitutions  which  forbid  the  establish¬ 
ment  of  state  religion,  the  abridgment  of  freedom  of  speech, 
and  the  deprivation  of  life,  liberty  or  property  without  due 
process  of  law?  Are  they  mere  expressions  of  the  people’s 
wish,  taking  effect  only  by  way  of  trust  and  confidence,  in 
whose  violation  it  is  the  legal  duty  of  a  citizen  to  acquiesce, 
yielding  obedience  to  a  command  of  the  legislature  to  the 

f 

people  though  in  direct  opposition  to  the  command  of  the 
people  to  the  legislature?  Or  do  these  clauses,  like  instruc¬ 
tions  to  a  private  agent,  set  limits  to  the  authority  vested 
in  the  men  we  send  to  the  capitol  to  make  laws  for  the 
general  good  which  they  cannot  overpass  without  losing 
legislative  power,  so  that  acts  in  excess  of  a  constitutional 
restriction  are,  for  most  purposes,  only  resolutions  of  a  mass 
meeting,  impotent  to  confer  on  any  one  a  legal  right  or  to 
impose  on  any  one  a  legal  duty?  Between  these  two  po¬ 
sitions  there  is  no  middle  ground.  The  power  of  the  legis- 


92 


47  AMERICAN  LAW  REVIEW 


lature  is  limited  or  unlimited.  So  far  as  it  is  unlimited,  the 
legislature  when  elected  becomes  supreme  over  the  indi¬ 
vidual,  a  despot  crowned  by  plebiscite.  If  limited,  the  in¬ 
dividual,  so  far  as  the  limit  extends,  is  exempt  from  legis¬ 
lative  control;  and  a  court  can  have  in  general  no  right  to 
enforce  against  him  a  law  it  thinks  unauthorized,  unless  it 
is  itself  subordinate  to  the  legislature  so  as  to  be  bound  to 
follow  the  legislature’s  opinion  or  to  enforce  the  legisla¬ 
ture’s  will. 

In  many  countries  the  framers  of  law  are  regarded  as 
possessing  unrestricted  power,  as  holding  in  their  hands  the 
life  and  liberty  of  every  citizen,  who  owes  obedience  to  their 
most  monstrous  and  arbitrary  edict,  until,  by  sounder 
judgment,  the  edict  is  repealed.  A  minority  can  only  trust 
to  the  forbearance  of  those  who  hold  law  making  power. 
When  that  fails  it  can  only  resist  by  force.  Such  was  the 
view  of  those  who  framed  the  constitution  of  the  first 
French  republic.  They  inserted  a  declaration  of  the  rights 
of  man  more  elaborate  than  any  bill  of  rights  we  have. 
They  attempted  to  secure  its  observance  by  directing  that 
it  be  “written  upon  tablets  and  placed  in  the  midst  of  the 
legislative  body  and  in  public  places,”  that  “the  people 
may  always  have  before  its  eyes  the  fundamental  pillars  of 
its  liberty  and  strength,  the  authorities  the  standard  of 
their  duties  and  the  legislator  the  object  of  his  problem.” 
As  a  further  protection  to  the  citizen  the  constitution  was 
expressly  placed  “under  the  guaranty  of  all  the  virtues”: 
a  weak  defense,  it  has  been  said,  to  an  assault  by  all  the 
passions.  Its  speedy  collapse  in  the  hour  of  need  is  illus¬ 
trated  by  a  decree  passed  on  the  trial  of  Danton  6  ‘  authoriz¬ 
ing  juries  to  declare  themselves  satisfied  of  the  guilt  of 
persons  accused  at  any  stage  of  the  proceedings  against 
them  ” :  in  other  words,  to  condemn  without  hearing.*1 

But  the  framers  of  the  French  constitution  did  not  fail 
to  anticipate  the  possibility  of  the  government’s  violating 
its  trust,  and  expressly  reserved  to  the  citizen  the  sole  pro- 

a  Bourke  Cockran,  John  Marshall  Centenary  Address,  I  Dillon’s  Mar¬ 
shall,  407-408. 


93 


THE  JUDICIAL  CENStfkSHIP  OF  LEGISLATION. 

tection  which  on  their  theory  of  governmental  power  is 
capable  of  being  bestowed  upon  him.  They  enacted  that 
“  resistance  to  oppression  is  the  inference  from  the  other 
rights  of  man.  It  is  oppression  of  the  whole  society  if  but 
one  of  its  members  be  oppressed.  When  government  vio¬ 
lates  the  rights  of  the  people,  insurrection  of  the  people  and 
of  every  single  part  of  it,  is  the  most  sacred  of  its  rights, 
and  the  highest  of  its  duties.’ ’  (Bourke  Cockran,  sup.) 
“It  would  be  well,”  said  Mr.  Roosevelt  at  Carnegie  Hall, 
“if  our  people  would  study  the  history  of  a  sister  repub¬ 
lic.  ’  ’  He  vividly  described  how  in  France  4  4  the  whirlwind 
of  the  red  terror  induced  a  violent  reaction,”  and  how 
“with  altenations  of  violent  radicalism  and  violent  Bour- 
bonism,  the  French  people  went  through  misery  toward  a 
shattered  goal.  ”  “  All  the  woes  of  France,  ’  ’  he  said  4 4  have 
been  due  to  the  folly  of  her  people  in  splitting  into  two 
camps  of  unreasonable  conservatism  and  unreasonable  rad¬ 
icalism.  ’  ’ 

Those  who  made  our  constitutions  were  of  a  different 
mind  from  the  statesmen  of  France.  The  French  view  of 
the  relation  between  government  and  citizen  never  pre¬ 
vailed  in  the  United  States.  Said  Judge  Matthews  in  Yick 
Wo  v.  Hopkins:1 

4  4  When  we  consider  the  nature  and  the  theory  of  our  in¬ 
stitutions  of  government,  the  principles  upon  which  they 
are  supposed  to  rest,  and  review  the  history  of  their  de¬ 
velopment,  we  are  constrained  to  conclude  that  they  do  not 
mean  to  leave  room  for  the  play  of  purely  personal  and  ar¬ 
bitrary  power.  .  .  .  The  fundamental  rights  to  life, 

liberty  and  the  pursuit  of  happiness,  considered  as  indi¬ 
vidual  possessions  are  secured  by  those  maxims  of  consti¬ 
tutional  law  which  are  the  monuments  showing  the  vic¬ 
torious  progress  of  the  race  in  securing  to  men  the  bless¬ 
ings  of  civilization  under  the  reign  of  just  and  equal  laws, 
so  that,  in  the  famous  language  of  the  Massachusetts  Bill 
of  Rights,  the  government  of  the  Commonwealth  4  may  be 
a  government  of  laws  and  not  of  men.’  ” 


1 118  U.  S.  356. 


94 


47  AMERICAN  LAW  REVIEW. 


In  tills  country,  in  short,  constitutional  restrictions  limit 
the  government’s  power,  and  not  merely  its  duty, — limit 
what  it  can,  not  what  it  ought  to  do.  Usurpation,  inten¬ 
tional  or  inadvertent,  is  futile,  for  the  citizen  owes  no  duty 
to  obey.  His  rights  are  unaffected.  As  individual  pos¬ 
sessions  unparted  with  they  are  secure.  And  the  courts  are 
open  to  determine  what  they  are  and  to  protect  them.  For 
when  one  person  is  sued  by  another  or  prosecuted  by  the 
State  itself,  and  controversy  arises  as  to  his  legal  rights, 
the  court  in  the  ordinary  course  of  litigation  must  ascertain 
them  according  to  the  truth  and  give  judgment  to  make  the 
truth  effective.  That  is  what  a  court  is  for.  If  it  is  con¬ 
tended  on  one  side  that  a  certain  statute  has  changed  a 
party’s  rights,  and  on  the  other  that  it  has  not  worked  a 
change  because  unauthorized  by  the  constitution,  the  court 
must  determine  which  contention  is  true  or  abdicate  its 
function  of  adjudication.  If  it  believes  the  act  was  author¬ 
ized  it  applies  it;  if  not,  it  accords  it  no  effect.  There  is 
nothing  in  this  peculiar  to  statutes  or  to  constitutions.  It 
is  an  application  of  the  general  truth  that  if  any  officer  or 
official  body  exceeds  its  authority  to  act  for  the  commun¬ 
ity,  which  is  called  its  jurisdiction,  the  act  is  void,  whether 
it  is  the  passage  of  an  ordinance,  the  service  of  a  writ,  or 
the  judgment  of  a  court.  A  sound  decision  against  the 
validity  of  a  statute,  judgment,  or  executive  act  is  an  en¬ 
forcement,  and  not  in  any  true  sense  an  overruling,  of  the 
people’s  will.  The  people’s  authentic  will  constitutes  law. 
It  binds  all  their  representatives.  For  that  very  reason 
they  are  bound  to  disregard  acts  in  the  people’s  name  which 
assume  to  modify  their  will  but  can  show  no  warrant  from 
the  people. 

So  far  as  a  constitution  is  intended  effectively  to  limit 
legislative  power,  so  far  it  necessarily  imposes  on  the  court 
a  duty  to  respect  the  limitation.  For  to  vest  in  the  legisla¬ 
ture  power  to  construe  the  restriction  would  reclothe  it 
with  the  absolute  control  which  it  was  the  purpose  of  the 
limitation  to  take  away;  and,  on  the  other  hand,  to  compel 
a  court  to  accept  the  legislature’s  interpretation  would  re- 


THE  JUDICIAL  CENSORSHIP  OF  LEGISLATION. 


95 


quire  it  to  surrender  the  duty  of  adjudicating  upon  tlie  legal 
rights  of  parties  for  which  it  was  created.  In  short,  the 
question  lies  between  the  people  and  the  legislature,  and  if 
it  is  true  that  a  citizen  owes  no  duty  to  obey  an  unconsti¬ 
tutional  statute,  a  court  has  no  right  to  compel  obedience. 
Hamilton,  in  number  seventy-eight  of  the  Federalist,  put 
the  whole  doctrine  into  a  few  words: 

‘ ‘  There  is  no  position  which  depends  on  clearer  principles 
than  that  every  act  of  a  delegated  authority,  contrary  to 
the  tenor  of  the  commission  under  which  it  is  exercised,  is 
void.  No  legislative  act,  therefore,  contrary  to  the  consti¬ 
tution  can  be  valid.  To  deny  this  would  be  to  affirm 
.  .  .  that  the  representatives  of  the  people  are  superior 

to  the  people  themselves.  .  .  .  Nor  does  this  conclusion 

by  any  means  suppose  a  superiority  of  the  judicial  to  the 
legislative  power.  It  only  supposes  that  the  power  of  the 
people  is  superior  to  both;  and  that  when  the  will  of  the 
legislature  declared  in  its  statutes  stands  in  opposition  to 
that  of  the  people  declared  in  the  Constitution,  the  judges 
ought  to  be  governed  by  the  latter  rather  than  the  former.  ’  ’ 

This  doctrine  was  early  established  and  has  been  uni¬ 
formly  acted  on.  Though  every  state  constitution  has  been 
framed  or  revised  since  then,  not  one  has  departed  from  it. 
Chief  Justice  Gibson  of  Pennsylvania,  its  ablest  opponent, 
retracted  his  dissent,  saying  experience  of  its  necessity  had 
changed  his  mind.2  It  is  an  unfounded  notion  that  in  hold¬ 
ing  statutes  invalid  our  courts  perform  a  function  not  in¬ 
herent  in  adjudication  itself  or  exercise  a  power  not  pos¬ 
sessed  by  courts  in  other  countries.  It  is  not  a  power  of 
American  courts  that  is  in  question,  but  a  characteristic  of 
American  statutes.  If  in  England,  for  instance,  a  question 
should  arise,  as  well  it  might,  in  which  the  rights  of  the 
parties,  having  accrued  in  the  United  States,  depended  upon 
the  laws  there  in  force,  it  would  become  necessary  for  the 
English  court  to  determine  whether  an  American  statute 
which,  if  valid,  controlled  the  case,  was  valid  or  not;  and 
for  that  purpose  to  pass  upon  its  coiistitutionality,  and  to 


2  Thayer,  Legal  Essays,  p.  2. 


96 


47  AMERICAN  LAW  REVIEW. 


disregard  it  if  unconstitutional,  as  a  court  in  this  country 
would.  In  Australia,  where  the  American  doctrine  of  legis¬ 
lative  power  prevails,  courts  hold  statutes  invalid  as  they 
do  here. 

If  Federal  courts  had  enforced  the  will  of  Congress  as 
supreme  law,  the  Constitution  of  the  United  States,  it  has 
been  said,  would  not  have  been  worth  the  parchment  upon 
which  it  is  engrossed.  If  the  States  had  acted  on  the  French 
theory  of  arbitrary  power  tempered  by  insurrection,  the 
law  reports  indicate  that  we  should  see  changes  in  govern¬ 
ment  oftener  than  changes  in  the  moon.  We  should  either 
have  to  teach  our  governors  self  restraint  more  effectively 
than  the  courts  have  done,  welcome  wTrong  with  suffering 
souls,  or  rush  to  arms  in  one  jurisdiction  or  another  sixtv- 
seven  times  a  year.  For  time  and  again,  taxes  have  been 
levied  for  private  benefit,  cities  intentionally  rendered  un¬ 
able  to  pay  their  debts;  rights  solemnly  granted  have  been 
deliberately  violated;  out  of  fear  or  favor  for  influential 
classes,  tyrannical  restrictions  have  been  laid  on  the  com¬ 
munity  at  large,  and  persons  with  little  political  influence 
deprived  of  important  rights.  Carelessness  has  been  fertile 
in  enactments  whose  incidence  has  been  arbitrary  and  op¬ 
pressive.  In  the  single  state  of  Illinois,  the  Supreme  Court 
held,  in  the  single  year  1911,  that  the  legislature  had  vio¬ 
lated  the  state  constitution  eleven  times,  and  most  of  the 
violations  were  palpable.  Whether  or  not  experience  dem¬ 
onstrates  that  constitutional  restraint  on  legislative  power 
is  salutary,  it  abundantly  demonstrates  that,  if  it  is  at¬ 
tempted,  court  control  is  necessary  to  make  it  real. 

Recent  criticism  of  constitutional  decisions  has  centered 
around  two  cases,  the  so-called  Bakeshop  case,  and  a  Work¬ 
men’s  Compensation  case  in  New  York.  In  each,  a  state 
statute  was  held  void  for  violating  a  provision  against  de¬ 
priving  any  person  of  life,  liberty  or  property  without  due 
process  of  law. 

The  due  process  clause  does  not  mean  that  the  forms  of 
legal  procedure  which  at  a  given  time  happen  to  be  pre¬ 
scribed  by  law  shall  be  followed  by  the  officers  charged  with 


THE  JUDICIAL  CENSORSHIP  OF  LEGISLATION. 


97 


the  law’s  enforcement.  That  would  be  superfluous  in  a 
country  where  no  officer  has  authority  except  under  the  law. 
It  secures,  not  the  due  and  proper  observance  of  established 
rules,  but  the  establishment  of  none  but  due  and  proper 
rules,  rules  consistent  with  the  theory  of  a  government  that 
holds  its  powers  for  the  common  good  and  acknowledges 
a  duty  to  protect  each  and  every  citizen  from  injustice  and 
oppression. 

In  the  Bakeshop  case3  the  defendant  had  been  fined  fifty 
dollars  for  violating  an  enactment  of  the  New  York  legisla¬ 
ture  that  no  employee  in  a  bakery  or  in  a  confectionery  es¬ 
tablishment  should  be  permitted  to  work  mote  than  sixty 
hours  in  a  week.  The  statute  was  denominated  a  labor  and 
not  a  health  law,  and  under  it  persons  who  sold  goods  over 
the  counter  in  bakesliops  and  candy  shops  would  seem  to 
have  been  treated  differently  from  those  who  sold  in  other 
shops,  and  persons  who  worked  in  the  kitchens  of  such 
shops  differently  from  those  who  worked  in  kitchens  of 
restaurants  or  hotels.  A  majority  of  the  New  York  judges 
and  a  minority  of  the  judges  of  the  United  States  Supreme 
Court,  when  the  case  came  there  on  error,  upheld  the  law 
because  they  thought  it  might  reasonably  be  deemed  an  ap¬ 
propriate  measure  for  the  protection  of  health.  But  Judges 
Peckliam,  Fuller,  Brewer,  Brown  and  McKenna,  a  majority 
of  the  Supreme  Court,  were  clear  that  the  law  was  a  pure 
and  simple  regulation  of  the  hours  of  labor  in  a  particular 
industry,  and  rested  their  decision  against  it  on  the  prin¬ 
ciple  that  to  limit  the  hours  that  a  man  may  work  for 
reasons  unconnected  with  physical  or  moral  well  being  is 
an  interference  with  individual  freedom  that  exceeds  the 
due  limits  of  governmental  power,  and  consequently  a  de¬ 
privation  of  liberty  without  due  process  of  law  within  the 
fourteenth  amendment  to  -the  Constitution  of  the  United 
States. 

If  the  act  clearly  were,  as  the  court  hint  it  was,  intended 
to  prevent  an  ambitious  baker  working  harder  than  suited 

3  Lochner  v.  New  York,  198  U.  S.  45,  177  N.  Y.  145,  73  App.  Div.  120. 

VOL.  XLVII.  7 


98 


47  AMERICAN  LAW  REVIEW. 


tlie  convenience  of  his  fellow  craftsmen,  probably  few  would 
quarrel  with  the  court  for  holding  it  void.  But  the  ground 
on  which  the  decision  was  rested  seems  to  involve  the  sweep¬ 
ing  doctrine  that  limitation  of  working  hours  for  social  or 
economic,  as  distinguished  from  moral  or  sanitary  reasons 
(for  instance,  the  general  establishment  of  an  eight  hour 
day),  is  among  the  things  which  the  people  of  the  United 
States  have  forbidden  to  the  people  of  the  States. 

It  is  not  the  purpose  here  to  criticise  that  doctrine,  nor  to 
indulge  in  conjecture  as  to  whether  it  will  command  the  as¬ 
sent  of  the  court  in  future,  but  only  to  point  out  the  position 
which  the  judges  took.  Of  those  who  passed  on  the  case 
on  appeal,  nine  supported  the  act  as  probably  or  possibly  a 
health  law  and  expressed  no  opinion  of  its  validity  as  a 
mere  labor  law.  Ten  expressed  an  opinion  that  a  state 
cannot  regulate  hours  of  labor  as  such.  Only  two,  Judge 
Alton  B.  Parker  in  the  Court  of  Appeals  and  Judge  Holmes 
in  the  Supreme  Court  dissented  from  that  proposition;  so 
that  although  the  judges  were  divided  eleven  to  ten  on  the 
question  of  fact  as  to  what  the  legislature  had  done,  only 
two  out  of  twenty-one  dissented  from  the  legal  doctrine  as 
to  what  the  legislature  had  power  to  do,  on  which  the  de¬ 
cision  turned.  It  is  therefore  untrue  to  say,  as  has  lately 
been  said,  that  “in  the  Bakeshop  case,  the  Supreme  Court 
of  the  United  States,  by  a  majority  of  five  to  four,  took  the 
ground  that  the  people  of  the  State  of  New  York  did  not 
have  the  right,  when  they  found  certain  conditions  to  be 
unhygienic,  and  so  declared  through  the  legislature,  to  pre¬ 
vent  men  from  working  for  too  many  hours  under  these 
unhygienic  conditions.  ”  No  judge  took  any  such  ground. 

It  is  incorrect,  also,  to  say  that  the  decision  violates  the 
often  declared  rule  that  a  statute  will  not  be  held  uncon¬ 
stitutional  unless  it  is  evidently  so,  and  that  “It  is  a  rank 
absurdity  to  hold  that  the  violation  of  the  constitution  is 
4 evident’  in  a  case  in  which  the  present  Chief  Justice  of 
the  United  States  and  enough  of  his  colleagues  to  come 
within  one  of  a  majority  hold  most  strongly  the  opposite 
view.  ’  ’  This  is  confusion  of  thought  as  well  as  misstatement 


THE  JUDICIAL  CENSORSHIP  OF  LEGISLATION. 


99 


of  fact.  A  jury  in  a  criminal  case  is  told  to  acquit  unless 
guilt  is  proved  beyond  reasonable  doubt.  That  does  not 
mean  that  if  one  or  more  jurors  think  the  prisoner  innocent, 
all  should  acquit  because  the  difference  of  opinion  shows 
reasonable  doubt.  It  means  that  each  juror  shall  be  clear 
in  his  own  mind.  The  rule  that  a  statute  to  be  held  void 
must  clearly  be  bad  means  that  each  judge  of  a  majority 
shall  be  clear  in  his  own  mind.  It  is  supposed  to  be  the  duty 
of  a  judge  to  make  up  his  mind  for  himself  and  not  to  let 
his  decision  be  controlled  by  the  opinion  of  anybody  else. 
What  would  be  a  rank  absurdity  would  be  to  direct  a  jury 
to  acquit  if  they  could  not  agree,  and  it  is  a  ranker  absurdity 
to  suggest  that  a  judge  ought  to  acquiesce  in  what  he  be¬ 
lieves  to  be  a  violation  of  constitutional  right  and  a  denial 
of  justice  to  the  parties  before  him,  because  some  of  his 
colleagues  think  differently.  If  this  needed  to  be  settled,  it 
was  settled  in  1827,  in  Ogden  v.  Saunders3a. 

In  the  Workmen’s  Compensation  case4  the  New  York 
Court  of  Appeals  held  invalid  a  statute  which,  as  the  court 
said,  made  the  employer  in  certain  industries  “responsible 
to  the  employee  for  every  accident  in  the  course  of  the  em¬ 
ployment  whether  the  employer  was  at  fault  or  not.”  The 
decision  disappointed  many  who  had  given  thought  to  the 
characteristics  and  tendencies  of  the  present  industrial  sys¬ 
tem.  They  deemed  the  establishment  of  employer’s  liabil¬ 
ity  for  accidental  injury  a  necessary  step  toward  relieving 
a  situation  productive  of  social  injustice  and  economic  loss, 
disastrous  to  the  workman  and  mischievous  to  the  com¬ 
munity.  They  also  saw  in  the  decision  an  obstacle  to  other 
reforms.  Their  disappointment  was  bitter,  and  so  was  their 
criticism.  They  said  that  the  legislature  had  appreciated 
what  the  court  had  not,  the  hardship  of  the  disabled  work¬ 
man’s  lot  and  the  evils  to  societv  which  resulted,  and  that 
the  considerations  of  public  welfare  which  required  the 
statute  should  suffice  to  support  it. 

In  order  to  see  the  question  as  the  judges  saw  it,  let  us  as¬ 
sume  for  the  moment  that  the  legislature,  actuated  by 


3a  12  Wheaton  213. 


4  Ives.  v.  So.  Buffalo  Ry.  Co*,  200  N.  Y.  271. 


100 


47  AMERICAN  LAW  REVIEW. 


sympathy  for  the  injured  workman,  looked  around  to  find 
the  nearest  rich  man  on  whom  to  shift  the  burden  of  the 
loss,  and  found  him  in  the  employer.  The  motive  is  com¬ 
mendable,  but  unquestionably,  if  that  is  all,  the  act  is  not 
due  process.  If  the  public  determines  that  compensation 
shall  be  made,  the  public,  perhaps,  may  make  it.  If  com¬ 
pensation  were  of  direct  public  advantage  that  would  jus¬ 
tify  the  legislature  in  providing  for  it,  but  would  not  in  any 
degree  justify  providing  for  it  at  the  sole  expense  of  an 
individual  or  set  of  individuals  selected  in  arbitrary  fash- 
ion.  Where  the  question  is  whether  the  legislature’s  ob¬ 
ject  is  legitimate,  it  is  material  to  consider  whether  that  ob¬ 
ject  is  to  benefit  an  individual  or  to  benefit  the  public.  Speak¬ 
ing  generally,  government  cannot  impose  a  burden  on  the 
public  for  the  mere  benefit  of  an  individual.  But  for  a  public 
benefit  it  can.  This  is  what  those  who  weigh  their  words 
mean  when  they  say  that  the  requirement  of  due  process 
does  not  cut  down  the  power  to  promote  public  welfare,  or 
to  use  the  customary  occult  phrase,  the  police  power.  They 
mean  that  although  a  taking  of  property  which  tends  to 
private  benefit  only  is  generally  a  taking  without  due  proc¬ 
ess,  yet,  a  taking  which  tends  directly  to  public  benefit  is 
unobjectionable  so  far  as  the  object  is  concerned.  But  when 
the  validity  of  a  law  is  considered  with  reference  to  the 
means  employed  to  secure  the  object,  the  fact  that  the  law 
will  result  in  public  benefit,  secure  justice,  or  promote 
health  or  morals  is  often  of  no  importance  at  all.  So  far  as 
concerns  the  object  of  a  law,  the  due  process  clause  does  not 
cut  down  police  power.  So  far  as  concerns  the  means  em¬ 
ployed,  it  does.  In  truth,  its  primary  purpose  and  effect  is 
to  say  to  the  government,  “You  shall  not  promote  public 
welfare  by  means  which  are  arbitrary,  oppressive  or  vio¬ 
lative  of  fundamental  principle.” 

Said  Judge  Harlan  in  Connolly  v.  Union  Sewer  Pipe  Co.:5 
“No  right  granted  or  secured  by  the  Constitution  of  the 
United  States  can  be  impaired  or  destroyed  by  a  state  en¬ 
actment,  whatever  may  be  the  source  from  which  the  power 


5 184  U.  S.  540. 


THE  JUDICIAL  CENSORSHIP  OF  LEGISLATION. 


101 


to  pass  such  an  enactment  may  have  been  derived.  .  .  . 

The  State  lias  undoubtedly  the  power  by  appropriate  legis¬ 
lation  to  protect  the  public  morals,  the  public  health  and 
the  public  safety,  but  if  by  their  necessary  operation,  its 
regulations  looking  to  either  of  these  ends  amount  to  a  de¬ 
nial  to  persons  within  its  jurisdiction  of  the  equal  protec¬ 
tion  of  the  laws,  they  must  be  deemed  unconstitutional  and 
void.7’  It  is  evident,  for  instance,  that  one  of  the  things 
intended  to  be  accomplished  by  the  fourteenth  amendment 
was  to  prevent  the  former  slave  states  from  resorting  to 
oppressive  and  discriminatory  methods  of  maintaining  or¬ 
der  and  working  out  their  social  problems.  It  was  intended 
to  preclude  such  a  law  as  that  passed  in  Massachusetts  two 
hundred  years  ago  “for  the  better  preventing  of  a  spurious 
and  mixed  issue,”  which  sought  to  further  that  commend¬ 
able  object  by  providing  that  “if  any  negro  or  mulatto  shall 
presume  to  smite  or  strike  any  person  of  the  Eng¬ 
lish  or  other  Christian  nation,  such  negro  or  mulatto 
shall  be  severely  whipped  at  the  discretion  of  the 
justices  before  whom  the  offender  shall  be  brought.” 
Whatever  that  “prevailing  morality  or  strong  and 
preponderant  opinion,”  of  which  Judge  Holmes  has 
spoken,  “may  hold”  two  centuries  hence  “to  be  greatly 
and  immediately  necessary  to  the  public  welfare,”  it  is  cer¬ 
tain  that  for  some  time  to  come  severely  whipping  at  dis¬ 
cretion  for  an  offense  by  a  negro  against  a  white  man,  not 
so  punished  when  committed  by  a  white  man  or  against  a 
negro,  will  be  deemed  an  illegitimate  method  of  preserving 
racial  purity,  and  that  for  as  long  a  time  taking  property 
from  a  person  who  is  supposed  to  be  properous  in  order  to 
give  it  to  one  in  adversity  will  have  to  be  justified  by  further 
reasons  than  that  it  is  a  method  of  preventing  economic 
waste  and  establishing  social  justice.  It  will  be  necessary 
to  point  out  in  what  relevant  respect  making  an  employer 
pay  for  an  accident  to  his  workman  at  work  differs  from 
making  him  pay  for  an  accident  to  his  workman  at  play, 
to  his  workman’s  wife,  or  to  his  workman’s  house.  It  is 
hard  to  see  a  difference  in  the  hardship  that  falls  on  the 


102 


47  AMERICAN  LAW  REVIEW. 


workman,  in  the  burden  that  having  to  pay  for  it  would  put 
on  the  employer,  or  in  his  ability  to  shift  the  burden  to  the 
consumer.  It  will  be  well  to  inquire  whether  the  principle 
invoked  to  support  workmen’s  compensation  will  extend 
to  making  a  landlord  pay  if  a  tenant  falls  down  stairs  and 
breaks  his  leg,  or  to  making  any  person  pay  any  other  who 
meets  with  accident  in  the  course  of  mutual  dealings. 

It  is  by  no  means  intended  to  intimate  that  the  Ives  case 
is  right  and  that  there  is  no  justification  for  selecting  the 
employer  as  a  person  to  bear  the  burden  of  an  accident  to 
a  workman  which  is  nobody’s  fault.  The  employer  gen¬ 
erally  controls  the  premises.  He  has  a  right  to  direct  the 
workman’s  acts.  He  lias  a  quasi  ownership  of  the  work¬ 
man’s  services,  and  is  like  a  borrower  of  the  workman’s 
person.  May  not  society  make  the  borrower  an  insurer,  or 
place  one  who  uses  men  to  do  his  work  in  a  like  condition 
as  to  risk  of  accident  as  if  he  had  used  his  own  or  another’s 
horses  or  machines?  If  the  product  is  tangible  it  is  the  em¬ 
ployer’s  property;  if  intangible,  the  work  enures  to  his 
benefit.  May  not  manufacturing  risk  properly  be  placed 
upon  the  owner  of  the  product?  But  granting  that  the  de¬ 
cision  is  wrong,  its  critics  would  do  better  to  try  to  point 
out  where  the  error  lies  than  to  misapply  phrases  about  po¬ 
lice  power  or  to  denounce,  as  devotees  of  an  outworn  polit¬ 
ical  philosophy,  judges  who  are  unwilling  to  acquiesce  in 
what  is  prima  facie  benevolent  spoliation. 

It  has  been  plausibly  said  that  constitutions  should  be  a 
means  of  securing,  not  of  thwarting,  “the  right  of  the  peo¬ 
ple  to  rule  themselves  and  to  provide  for  their  own  social 
and  industrial  well  being,”  and  that  the  people  should  be 
free  “to  enact  into  law  any  measure  they  deem  necessary 
for  the  betterment  of  social  and  industrial  conditions.” 
One  who  believes  the  latter  statement  is  probably  in  favor 
of  striking  the  prohibition  of  slavery  out  of  the  constitu¬ 
tion,  in  order  that  if  the  people  come  back  to  the  opinion 
once  held  in  the  South,  that  social  and  industrial  conditions 
are  better  when  the  blacks  are  slaves  than  when  they  are 
free,  there  may  be  no  constitutional  obstacle  to  thwart  the 


THE  JUDICIAL  CENSORSHIP  OF  LEGISLATION. 


103 


people’s  right  to  provide  for  their  well  being  by  re-estab¬ 
lishing  slavery.  The  main  purpose  of  constitutional  re¬ 
strictions  is  to  promote  well  being  by  making  sure  that  what 
is  done  shall  be  in  accordance  with  principles  of  fair  deal¬ 
ing  and  of  regard  for  individual  welfare  which  on  particular 
occasions  we  are  prone  to  overlook.  The  restriction  rightly 
or  wrongly  applied  in  the  Ives  case  was  imposed  by  the 
people  in  the  exercise  of  their  right  to  ensure  the  wisdom 
and  justice  of  their  rule. 

We  are  prone  to  think  that  popular  government  means 
popular  liberty.  But  it  has  been  often  pointed  out  that  it 
is  not  the  form  of  government  but  the  laws  which  the  gov¬ 
ernment  makes  upon  which  the  liberty  and  welfare  of  the 
people  depend.  Given  the  laws,  it  makes  little  difference 
what  was  the  form  of  government  that  made  them.  We 
have  statutes  which  punish  unintended  acts  by  imprison¬ 
ment  or  fine,  from  selling  milk  which  turns  out  to  be  below 
standard  to  committing  bigamy  by  marrying  in  a  well  war¬ 
ranted  bpt  mistaken  belief  that  one’s  former  spouse  is  dead 
or  divorced.  It  might  seem  better  to  send  to  jail  the  judge 
who  signs  a  void  decree  of  divorce  than  the  woman  who 
marries  again  in  reliance  on  her  husband’s  having  obtained 
it,  but  the  instance  is  only  one  among  many  in  which  pun¬ 
ishment  is  decreed  against  the  innocent  in  order  to  avoid 
the  necessity  of  proving  the  guilt  of  the  guilty,  lest  by  feign¬ 
ing  innocence  they  might  escape.  Constructive  treason  fell 
because  it  was  men  of  influence  who  were  likely  to  be  ac¬ 
cused.  We  have  defined  treason  narrowly  in  the  constitu- 
tion  because  they  were  interested  in  having  it  defined.  But 
the  creation  of  constructive  misdemeanors  goes  on,  and  it  is 
the  poor  and  ignorant  who  are  most  likely  to  be  punished. 
That  distinct  zoological  species  known  as  the  criminal  class 
may  be  treated  too  tenderly  in  criminal  procedure,  but  it 
finds  little  sympathy  anywhere  else,  though  there  is  hardly 
a  man  who  has  not  commited  a  series  of  technical  crimes. 
What  were  the  motives  which  induced  and  the  sense  of  jus¬ 
tice  which  permitted  the  legislature  of  a  single  state  within 
the  past  few  years  to  enact,  in  a  case  where  the  constitution 


104 


47  AMERICAN  LAW  REVIEW. 


gave  a  right  to  jury  trial,  that  the  jury  might  meet  without 
notice  to  one  of  the  parties,  render  their  verdict,  and  then 
give  him  a  chance  to  convince  them  they  were  wrong?  To 
make  it  a  crime  for  sellers  to  combine  to  raise  prices,  but 
permit  them  to  commit  that  crime  to  the  damage  of  the  com¬ 
munity,  if  it  would  benefit  their  workmen  by  raising  wages  ? 
To  create  public  employment  offices  at  public  expense  and 
forbid  their  use  to  get  work  at  or  workmen  for  an  estab¬ 
lishment  where  there  was  a  strike?  To  forbid  contractors 
on  public  works  to  hire  aliens?  To  make  it  a  penal  offense 
to  buy  an  article  with  the  owner’s  consent,  provided  the 
article  is  a  bottle  with  a  registered  trademark,  the  consent 
is  oral,  and  the  bottle  empty?  To  make  the  possession  of 
such  an  empty  bottle  sufficient  evidence  of  crime,  provided 
the  possessor  deals  in  junk?  To  permit  farmers  to  retain 
the  right  of  holding  back  wages  because  of  debts  due  from 
their  workmen  and  prohibit  everybody  else  from  doing  so? 
To  empower  a  tax  assessor  to  tax  for  misconduct?  To  per¬ 
mit  owners  of  land  in  a  drainage  district  to  act  as  assessors 
and  apportion  the  cost  of  drainage  between  their  own  lands 
and  their  neighbors?  To  give  a  monopoly  to  shopkeepers 
by  requiring  peddlars  of  a  certain  article  to  pay  a  license 
fee  of  one  hundred  dollars  a  month?  And  to  make  an 
owner  who  has  paid  for  his  house  in  full  liable  against  his 
known  will  for  the  price  of  materials  sold  to  and  used  by  the 
builder  ?6 

The  maxim  that  the  end  justifies  the  means  is  pushed 
far  in  government.  The  primary  object  of  security  to  all 
is  so  easily  forgotten  in  the  desire  to  promote  the  advantage 
of  the  many  that,  even  when  an  attempted  violation  of  the 
constitution  obliges  a  court  to  protect  an  individual  against 
injury  caused  by  the  government’s  wish  to  do  a  good  thing 
in  a  bad  way,  the  court  is  apt  to  be  denounced  for  mis¬ 
chievous  interference.  To  drive  an  engine  at  full  speed  to 

6  Wabash  R.  Co.  v.  Drainage  Dis-  207  Ill.  624;  Cleveland  R.  Co.  v.  P., 
trict,  194  Ill.  310;  P.  v.  Foundry,  212  Ill.  638;  Commissioners  v. 
201  Ill.  236;  Matthews  v.  P.,  202  Smith,  233  Ill.  417;  P.  v.  Wilson, 
Ill.  389;  Chicago  v.  Hulbert,  205  249  Ill.  195;  Kelly  v.  Johnson,  251 

Ill.  346;  Horwick  v.  Laboratory,  205  Ill.  135. 

Ill.  497;  Kellyville  Co.  v.  Harrier, 


THE  JUDICIAL  CENSORSHIP  OF  LEGISLATION. 


105 


a  fire,  reckless  of  who  is  run  over  in  the  street,  may  become 
punishable  as  criminal  homicide;  but  there  is  little  to  re¬ 
strain  lawmakers  from  attempting  to  secure  desirable  ends 
by  the  quickest  and  easiest  means.  The  American  colonists 
were  driven  to  revolt  because  the  English  government  was 
administered  in  the  interest  of  the  mass  of  the  people, 
without  due  regard  to  the  interests  of  a  class — the  people 
of  the  colonies — who  had  no  adequate  way  to  make  their 
interest  known  and  felt.  Our  constitutions  are  framed  to 
guard  as  well  as  may  be  against  a  future  like  misuse  of 
power.  Their  framers  did  not  stop  with  provision  for  pop¬ 
ular  control.  To  frame  the  government  so  that  the  opin¬ 
ion  of  a  majority  is  quickly  reflected  in  law  tends  to  secure 
the  many  against  injustice  at  the  hands  of  a  few,  but  gives 
no  sure  protection  to  the  few  against  the  many.  The 
farther  the  functions  of  government  extend,  the  fewer  are 
its  citizens  whose  interest  does  not  in  some  point  lie  with 
a  minority.  The  present  movement  for  better  government, 
founded  in  sympathy  for  all,  confident  in  its  determination 
to  see  justice  done  for  all,  and  desirous  to  strengthen  the 
powers  of  government  that  it  may  more  quickly  serve  that 
purpose,  will  need  the  wisdom  of  self  restraint  not  to  sac¬ 
rifice  to  the  desires  of  today  securities  that  will  be  neces¬ 
sary  for  the  justice  of  tomorrow.  Some  think  the  people  at 
large  will  in  the  long  run  be  more  keenly  alive  to  justice 

and  the  future’s  needs  than  will  the  men  whom  thev  select 

,  /  «/■ 

to  hold  the  high  office  of  judges  over  them.  They  think  it 
the  nature  of  a  judge  to  be  mentally  paralyzed  by  precedent 
and  the  pressure  of  existing  institutions.  They  adduce  the 
Dred  Scott  case  in  illustration,  and  say  that  until  the  peo¬ 
ple  virtually  overruled  it  progress  was  blocked.  No  doubt, 
had  it  been  submitted  to  them,  the  people  would  have  over¬ 
ruled  the  propositions  which  Judge  Taney  there  laid  down, 
that  a  negro,  though  free,  could  not  be  a  citizen  of  the 
United  States,  that  our  constitution  was  not  framed  for 
the  benefit  of  all  who  were  born  and  lived  under  its  laws, 
and  that  the  members  of  a  race  might  owe  allegiance  to  our 
government  and  yet  not  be  entitled  to  citizenship  o^  to  the 


106 


47  AMERICAN  LAW  REVIEW. 


protection  for  personal  rights  which  many  guarantees  of 
its  constitution  afford.  Yet  a  generation  later  the  Supreme 
Court  reaffirmed  the  principle  and  applied  it  to  Porto  Rico 
and  the  Philippines.  If  the  doctrine  that  “the  people  of  the 
United  States”  does  not  include  all  freemen  born  and  liv¬ 
ing  under  its  government  had  really  been  overruled,  we 
should,  for  good  or  ill,  have  been  shorn  of  power  to  hold 
polonies  to  advantage.  It  is  not  by  the  desires  of  a  day  or 
a  generation  that  constitutions  are  to  be  construed.  If 
we  praise  Chief  Justice  White’s  decision,  we  cannot  con¬ 
sistently  denounce  Chief  Justice  Taney’s  views  as  behind 
the  times. 

The  delimitation  of  the  powers  of  state  and  nation,  made 
by  the  Supreme  Court  in  a  century  of  decisions,  is  today  ad¬ 
mitted  to  have  been  in  its  main  lines  essential  to  the  nation’s 
progress,  and  is  generally  believed  to  have  translated  into 
living  reality  the  conceptions  and  purposes  of  its  founders. 
If  their  decisions  had  been  dependent  on  popular  approval, 
it  is  likely  that  much  of  the  work  of  Marshall  and  his  col¬ 
leagues  would  have  been  swept  away.  For  the  greater  part 
of  Marshall’s  term  the  opposite  party  controlled  Congress 
and  possessed  the  Presidency.  After  1811,  a  majority  of 
his  colleagues  differed  with  him  in  politics.  Yet  they 
reached  the  same  solution  of  constitutional  problems  and 
most  of  their  work  has  stood  the  test  of  time. 

The  saying  that  law  lags  behind  the  community ’s  advance 
is  less  than  half  true.  Of  course,  an  institution  lasts  until 
men  have  not  only  formed  but  acted  effectively  on  an  opin¬ 
ion  against  it.  But  the  history  of  the  law  of  trusts  and 
fraud  continually  shows  a  putting  into  effect  of  standards 
in  advance  of  average  morality.  It  was  the  courts  who  from 
Tudor  times  established  the  duties  of  public  service  which 
the  interstate  commerce  act  has  developed,  and  the  rules 
of  restraint  of  trade  from  which  the  anti-trust  act  draws  vi¬ 
tality.  They  taught  corporate  directors  their  trusteeship, 
and  have  set  their  faces  steadily  against  the  many  forms 
of  unconscionable  profit  taking  by  fiduciaries  which  have 
been  widely  practiced  and  properly  condoned.  In  calling 


THE  JUDICIAL  CENSORSHIP  OF  LEGISLATION.  107 

* 

legislatures  to  account  courts  only  give  an  instance  of  the 
scrupulous  enforcement  of  obligation  which  has  made  them 
by  precept  and  example  the  leading  public  influence  for 
truth  and  honor. 

The  recall  of  decisions  proposes  to  amend  state  constitu¬ 
tions  so  as  to  provide  that  when  a  given  statute  has  been 
held  void  the  question  may  be  submitted  for  popular  vote 
whether,  notwithstanding  the  holding,  it  shall  be  valid  for 
the  future.  If  the  vote  is  in  favor  of  the  statute,  a  wrong 
decision  will  thus  be  neutralized  for  future  cases,  a  right 
decision  rendered  inapplicable  by  creating  a  special  ex¬ 
ception  to  the  constitution,  opening  up  its  prohibition  to 
let  the  particular  measure  pass.  A  voter  who  votes  for  the 
statute  thinking  the  decision  wrong  votes  as  a  judge  in¬ 
terpreting  the  constiution.  He  exercises  judicial  power. 
If  he  thinks  the  decision  right,  he  votes  as  an  amender  of 
the  constitution  and  exercises  legislative  power.  Generally 
he  will  simply  vote  for  the  stautute  if  he  likes  it  and  against 
it  if  he  doesn’t.  Nobody  can  tell  what  he  is  trying  to  do, 
but  the  judges  will  treat  the  constitution  as  amended  so  as 
to  permit  the  act. 

Constitutional  protection  is  diminished  where  amend¬ 
ment  is  by  majority  vote,  and  is  minimized  where  the  ques¬ 
tion  submitted  is  not  a  proposed  change  in  legislative  power, 
expressed  in  general  terms  embodying  a  principle,  but  is 
whether  a  particular  statute  shall  be  law.  If  a  vote  were 
taken  as  to  whether  the  legislature  should  hav£  power  to 
reduce  railroad  fares  below  cost  of  transportation,  the  an¬ 
swer  would  probably  be  negative;  but  if  the  vote  were 
whether  fares  should  be  fixed  at  two  cents  a  mile, fit  would 
be  much  more  likely  to  carry,  even  after  a  court  had  held 
the  rate  too  low.  Personal  interest  generally  controls  opin¬ 
ion.  We  trust  our  judgment  against  the  umpire’s  when  he 
rules  against  our  team.  Most  men  who  lose  lawsuits  think 
they  should  have  won.  And  many  would  stick  to  an  opinion 
that  a  railroad  could  make  shift  to  carry  them  at  two  cents 
a  mile,  though  investigation  had  satisfied  judges  to  the  con¬ 
trary.  This  would  hold  wherever  the  interest  or  prejudice 
of  a  majority  was  at  stake. 


108 


47  AMERICAN  LAW  REVIEW. 


In  theory  the  use  of  recall  should  be  limited  to  statutes 
passed  in  the  belief  they  were  constitutional,  for  a  legisla¬ 
ture  cannot  honestly  enact  a  law  it  does  not  think  the  con¬ 
stitution  permits.  But  there  would  be  no  way  to  detect  the 
legislature’s  opinion,  and  it  would  be  possible  for  any  sort 
of  law  to  be  passed  and  enforced  with  the  object  of  securing 
ratification  from  the  people  after  a  court  had  held  its  pas¬ 
sage  and  enforcement  illegal,  concealing  the  impropriety  of 
the  procedure  under  the  assertion,  which  could  hardly  be 
disproved,  that  the  popular  vote  which  gave  the  law  a  cer¬ 
tificate  of  constitutionality  for  the  future  was  a  vote  that 
it  had  been  constitutional  from  the  beginning.  The  pres¬ 
sure  to  pass  unauthorized  laws  would  probably  increase 
to  the  destruction  of  the  already  scant  respect  which  legis¬ 
lators  show  for  constitutional  objections  to  measures  be¬ 
lieved  to  be  popular.  It  would  increasingly  throw  on  the 
courts,  whose  alleged  relative  unfitness  for  the  duty  is  the 
pretext  for  the  recall,  the  burden  of  deciding  questions  of 
constitutionality  which  legislators  are  in  duty  bound  to  de¬ 
termine  in  the  first  instance  for  themselves.  It  is  a  serious 
drawback  to  constitutionality  being  a  question  for  courts 
that  it  tends  to  reckless  lawmaking,  the  legislature  relying 
on  the  court  to  correct  its  excesses.  At  present,  courts  have 
final  decision  and  responsibility.  The  recall  would  take  de¬ 
cision  from  them  and  scatter  responsibility  to  the  wind. 
The  argument  used  for  any  doubtful  measure  backed  by  in¬ 
terest,  reputable  or  disreputable,  “Pass  it,  and  if  it  is  un¬ 
constitutional,  the  court  will  hold  it  bad,”  would  be  rein¬ 
forced  by  the  argument,  “Pass  it,  even  if  it  is  unconstitu¬ 
tional,  for  the  people  are  entitled  to  vote  it  into  validity.” 
The  legislature  would  look  to  the  people  and  the  people 
would  take  it  for  granted  that  the  measure  was  proper  or 
it  would  not  have  been  passed.  When  the  majority’s  power 
of  overruling  decisions  and  making  exceptions  to  the  con¬ 
stitution  had  come  to  be  a  matter  of  course,  laws  might 
come  to  be  passed  without  regard  to  constitutional  warrant, 
and  ratified,  if  popular,  without  regard  to  decisions  against 
them.  The  recall,  like  the  choice  of  President  by  electors, 


THE  JUDICIAL  CENSORSHIP  OF  LEGISLATION. 


109 


is  capable  of  becoming  in  fact  something  different  from 
wliat  it  is  in  form.  Under  a  system  which  puts  direct  con¬ 
trol  in  the  voter’s  hands  the  opinion  of  judges  might  almost 
count  for  as  little  as  the  opinion  of  Presidential  electors 
does.  State  constitutional  limitations  would  be  amendable 
by  majority  vote.  They  would  be  amendable  by  the  enact¬ 
ment  not  of  principles  but  of  particular  measures.  They 
would  be  amendable  under  the  guise  of  interpreting  them. 
Their  value  and  effectiveness  might  be  destroyed.  For 
constitutional  limitations,  as  we  have  them,  give  us;  first, 
established  principles  to  which  laws  must  conform;  second, 
a  means  of  carefully  testing  laws  and  analyzing  their  true 
character  to  determine  whether  they  really  do  so  conform; 
and,  third,  security  against  departure  from  conformity  ex¬ 
cept  of  set  purpose  through  amendment  by  a  method  de¬ 
signed  to  secure  due  regard  to  the  interests  of  everybody. 
All  these  things  would  be  broken  in  upon.  It  may  be  that 
they  are  not  worth  keeping,  and  that  under  a  legislature 
with  power  to  do  anything  a  majority  of  the  voters  are 
willing  to  ratify  we  should  have  better  government.  But 
we  ought  to  face  the  possibilities  of  the  situation.  In  fact, 
if  we  adopt  the  recall  of  decisions  all  that  will  be  necessary 
to  wiping  out  constitutional  guarantees  altogether  will  be  a 
single  statute  making  it  the  duty  of  courts  to  enforce  all 
laws  thereafter  passed  and  a  ratification  of  that  statute 
at  the  polls  after  the  judges  have  refused  to  put  it  into 
effect.  If  the  recall  were  applied  to  Federal  decisions,  a 
similar  act  of  Congress  similarly  ratified  would  give  Con¬ 
gress  power  to  make  laws  on  all  subjects  whatever. 

The  main  professed  purpose  of  the  recall  of  decisions  is 
to  nullify  unsatisfactory  rulings  under  the  due  process 
clause.  To  make  it  thoroughly  effective  for  this  purpose 
would  also  require  an  amendment  to  the  federal  constitution 
permitting  the  people  of  a  state  to  recall  a  decision  of  the 
state  court  rested  on  the  federal  due  process  clause.  For 
otherwise,  unless  there  happened  to  be  controlling  authority 
on  the  very  point,  the  state  court  could  rest  its  decision 
against  the  validity  of  a  state  statute  on  the  fourteenth 


110 


4(  AMERICAN  LAW  REVIEW. 


amendment  and  it  would  be  immune  from  recall  by  the  peo¬ 
ple  of  the  state,  as  they  could  neither  change  the  federal 
constitution  nor  direct  the  court  to  disobey  it.  Even  after 
such  an  amendment,  an  adverse  decision  of  the  federal 
supreme  court  would  still  annul  the  statute. 

The  purpose  can  be  sufficiently  accomplished  in  a  simpler 
and  better  way.  It  has  been  pointed  out7  that  in  a  state 
where  decisions  as  to  due  process  are  unsatisfactory  all  may 
be  set  right,  so  far  as  is  possible  by  anything  the  people  of 
the  state  may  do,  by  striking  the  due  process  clause  from 
the  state  constitution  and  relying  on  the  protection  against 
arbitrary  legislation  which  the  like  provision  in  the  federal 
constitution  amply  affords.  An  act  of  Congress  could  per¬ 
mit  a  review  by  the  federal  supreme  court  of  a  state  court’s 
ruling  against  a  statute  under  the  fourteenth  amendment  as 
it  now  permits  review  of  a  ruling  in  the  statute ’s  favor.  Or, 
instead  of  repealing  outright  a  state  due  process  clause  it 
might  be  in  some  respects  better  to  amend  it,  to  read  that 
no  act  shall  be  held  invalid  as  denying  due  process  or  equal 
protection  of  law  except  under  the  fourteenth  amendment 
to  the  constitution  of  the  United  States. 

Another  method  undoubtedly  effectual  in  the  long  run  to 
keep  the  court  from  unduly  limiting  the  legislature’s  au¬ 
thority  is  the  amendment  lately  submitted  in  Ohio  which 
requires  the  state  court  of  last  resort  to  uphold  a  statute  if 
two  judges  think  it  valid. 

Granting  that  in  some  states  courts  seem  committed  at 
present  to  too  narrow  a  view  of  governmental  power,  still 
we  may  be  confident  that  present  methods  of  amendment, 
the  people’s  control  over  the  personnel  of  the  bench,  the 
susceptibility  of  judges’  minds  to  reason,  and  the  whole¬ 
some  influence  of  discussion  such  as  the  country  has  been 
having  of  late  will  be  enough  to  remove  just  discontent 
without  sacrificing  the  benefits  of  our  present  system. 


University  of  Illinois. 


Frederick  Green. 


7  Dr.  W.  F.  Dodd,  6  Illinois  Law  Review,  289;  10  Michigan  Law 

Review  79. 


